Wednesday 27 August 2014

Caroline B Ncube

Moneyweb vs. Fin24 - copyright infringement litigation

A Leo engrossed in pleadings
Moneyweb is suing Fin24 for copyright infringement arising out of Fin24's (re-)publication of eight articles which had been initially published by Moneyweb (see a Mail and Guardian report here). Moneyweb has created a dedicated website (here) where it has posted all of the pleadings filed to date and media articles. This Leo rarely has an opportunity to read litigants' court documents and is delighted that these documents are so readily available.

 Alas, the opening salvo of this battle, Moneyweb's Founding Affidavit, is not available  on the site (the link opens Annexure C1 instead). However, the answer, Fin24's Answering Affidavit , is available, as is Moneyweb's Replying Affidavit. This Leo finds it all very interesting and useful. Thanks to Moneyweb's website, she can share recent pleadings with her IP students and she is certain that many Afro-IP readers will find the documents interesting too. This will be a very interesting case to follow, as it is the first time a South African court has had an opportunity to consider whether news aggregation constitutes copyright infringement. Anton Harber succintly captured what's at stake, when he blogged
"This is a battle of our media giants, as Moneyweb is owned by Caxton and Fin24 by Nasper’s Media24. The elephants are fighting and the ants are watching, as always, nervously." (Read his full post here).

UPDATE - 2 September
Thanks to Ryk van Niekerk for letting this Leo know that the link to the Founding Affidavit has been fixed. Happy reading, all! 

For how other jurisdictions have resolved similar cases see-
 AP wins ruling in copyright case against news aggregator [2013 - The Associated Press v Meltwater U.S. Holdings Inc, 12-cv-1087, U.S. District Court, Southern District of New York]
UPDATE 1-Dow Jones wins injunction against Ransquawk over 'hot news' [ 2014- Dow Jones & Co v. Real-Time Analysis & News Ltd, U.S. District Court, Southern District of New York, No. 14-00131]

Caroline B Ncube

Caroline B Ncube

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Jeremy Speres
27 August 2014 at 20:54 delete This comment has been removed by the author.
Jeremy Speres
27 August 2014 at 21:08 delete

Thanks for this Caroline. Fascinating dispute this!

The founding papers are available here:

After reading the replying affidavit, it's looking increasingly likely that this will turn on whether Media24's conduct amounts to fair dealing; the facts necessary to satisfy the rest of the defenses don't seem to be present.

What's particularly interesting is how Moneyweb have relied on supporting affidavits from other prominent editors to show that Media24's aggregation policy goes against accepted journalistic practice. In this regard, the UK and Canadian courts have accepted that industry standards or customs are relevant to the "fairness" assessment. See for example the Canadian case of CCH Canadian Ltd. v. Law Society of Upper Canada, available here:

In Canada, they too have a "fair dealing" exception and apply very similar factors to those applied in terms of fair use in the USA, and, incidentally, very similar factors to those espoused by Prof. Owen Dean for application in SA. In the above decision, the court accepted that industry standards or customs are relevant when assessing the "character of the use" factor.

The use of these supporting affidavits by Moneyweb could therefore turn out to be a masterstroke.

To my mind it makes good sense to assess fairness within the context of what is accepted practice in the industry concerned. Fairness (a moral concept) should presumably be assessed with regard to the moral convictions of the community, which could well be reflected in the industry practices concerned. Of course there is always the danger that the industry practices themselves are not fair, thus this factor should be applied gingerly. Nevertheless, industry practices or customs do seem to be a good indicator (albeit not conclusive) of fairness.

Love to hear your thoughts!

30 August 2014 at 13:59 delete

Interesting development, not least that the claimant smartly decided (I'm guessing due to potential public interest concerns) to manage the reputation of this lawsuit with a dedicated website.

This is the kind of strategy that I've recently seen in the U.S. - particularly, class action lawsuits.

If they succeed, web content owners in other countries (especially Nigeria) might be emboldened to do likewise. Exciting!

Anyway, Meltwater also had its fair share of copyright litigation, all the way to the apex court in the UK & EU (see and

1 September 2014 at 10:43 delete

Hi Jeremy and Kingsley
Thanks for your comments.
Like Kingsley, I find the idea of 'containing' any possible reputational damage of the lawsuit through the case website to be a shrewd one. Jeremy - I've been mulling over (and researching) the use of industry practice as a gauge of fairness in a fair dealing enquiry. I came across an interesting post over at IPOsgoode [] which discusses the CCH cases's six factors for determining fairness viz - (1) purpose of the dealing, (2) character of the dealing, (3) amount of the dealing, (4) alternatives to the dealing (5) the nature of the work (6) the effects of the dealing on the work. However, it does not discuss industry practice iro factor (2). I found an interesting take on industry practice and news aggregation in a post by Roger Hislop 'What Moneyweb/Fin24 aggregation battle means for South Africa’s media' []
This is my long answer for I'm not sure what a South African court ought to decide but I'd like to explore this further - shall we write a journal article on this issue together?